A Big Question About Little Sisters of the Poor

January 2, 2014
9:24AM
Post by Sarah Posner

Justice Sonia Sotomayor's New Year's Eve granting of the request by Little Sisters of the Poor and other Catholic organizations to enjoin (temporarily) the Obama administration from enforcing the birth control coverage requirement made for overblown headlines like "Supreme Court Halts Birth Control Mandate for Catholic Group" and "Birth-control rule a hitch as health law takes effect."

In reality, Justice Sotomayor only stayed the court of appeals' denial of Little Sisters' request for an injunction; in other words, her ruling only temporarily stops the government from enforcing the regulation against Little Sisters and its co-plaintiffs. How the case will ultimately turn out is far from clear.

But as Georgetown Law School's Marty Lederman points out in a new post at Balkanization, the hitch is not in the law, but in Little Sisters' case itself.

Little Sisters of the Poor, an order of nuns that operates nursing homes for the poor, is, like other religious non-profits, subject to the accommodation that the administration crafted last year in response to objections that religious non-profits, like houses of worship, should be fully exempt from the rule. The accommodation requires them to self-certify as objecting religious organizations, thus placing the onus on their insurance plan's third-party administrator to offer the coverage separately to employees. Objecting non-profits claim this arrangement still makes them complicit in providing the coverage they consider sinful, in that the self-certification would "authorize" and "direct" the coverage through the third-party administrator.

http://www.religiondispatches.org/dispatches/sarahposner/7476/a_big_question_about_little_sisters_of_the_poor/

This is a solid analysis.